JAVED SAQIB v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Pakistan who entered Hong Kong illegally 24 June 2016 and surrendered to the Immigration Department on 27 June 2016 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his neighbors over their religious disputes and/or by his former employer for trying to silence him for being involved in their illegal activities.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Sunni Muslim in Jalalpur Jattan Province, Punjab, Pakistan.  After leaving school he married his wife and raised a family with 3 children in his home district.

3.  One of his neighbors were the 3 Syed brothers who were all Shia Muslims and had had numerous religious disputes with the Applicant over the years, and during one particularly heated arguments between them in 2013, the Syed brothers made death threats against him that the Applicant became fearful for his life that he subsequently left town for Gujjrat to work for a construction company Zaib Builders.

4.  During the course of his job the Applicant was involved in grabbing lands illegally from ignorant farmers or poor landowners for his employer, but by 2016 he felt that his employer had finished using him and was trying to get rid of him by killing him so as to silence him from exposing their land grabbing activities, and with the Syed brothers still threatening to come after him, the Applicant felt that it was no longer safe to remain in Pakistan, and so on 29 May 2016 he departed for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 September 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 21 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his neighbors the Syed brothers or his former employer Zaib Builders upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill him other than the Applicant’s own suspicion and speculation, that in any event these were private disputes between them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 million people spread across a vast territory of more than 706,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for anyone to locate him.

7.  On 2 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 4 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 14 August 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his neighbors the Syed brothers or his former employer Zaib Builders that caused him to leave his country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of either of them to seriously harm or kill him other than his own suspicion speculation and exaggerations when his alleged religious disputes with the Syed brothers had been on-going for years without any serious incidence, and that in any event these were private disputes between them without any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 9 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of the Board’s decision.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1